Was McGovern decision correct?

By Professor William Binchy

November 19th, 2006

Anyone concerned for the protection of human rights in Ireland should read with alarm last week's decision by Mr Justice McGovern on the rights of human beings at the earliest stage of their life. His ruling that the electorate, in the 1983 vote to protect the right to life of the unborn, intended to deny constitutional protection to human beings outside the womb is contrary to what occurred at that time and inconsistent with any coherent philosophy or value system. Those who can remember the national debate will recall the sharp divisions it involved.

The amendment proposed that the right to life of the unborn should be acknowledged and respected. It made clear that this right was not of a lesser status than the right to life of other human beings. McGovern did not interpret it in this way. Repeatedly professing agnosticism on the question as to ‘‘when life begins'', he held that the amendments ought to limit constitutional protection only to human beings within their mother's womb. He stated: ‘‘While I accept that Article 40.3.3 is not to be taken in isolation from its historical background and should be considered as but one provision of the whole Constitution, this does not mean that the word ‘unborn' can be given a meaning which was not contemplated by the people at the time of the passing of the Eighth Amendment.”

With all respect to the judge, this conclusion is inconsistent with the empirically demonstrable facts. Of course, the motivation for the amendment sprang from a concern that, in the absence of explicit constitutional protection, a right to abortion might be found to exist on the basis of the recently-identified right to privacy. The Supreme Court of the United States had done this in Roe v Wade in 1973, the year in which the Irish Supreme Court articulated a right to marital privacy. With the later development in Ireland of the right to privacy (now disconnected from the context of marriage) and the right to autonomy, the need for express constitutional protection of the right to life has become even more plain. McGovern has confused the circumstances leading to the introduction of the amendment with the intended scope of that amendment. A well-based concern about abortion undoubtedly led to the call for the amendment, but its purpose was never restricted to preventing abortion. To do so would have left unborn human beings outside the womb with no constitutional protection against the destruction of their lives. The whole point of the amendment was to assert the equal value of every human being's life, not simply the life of those who were in their mothers' wombs. The debate about the implications of the amendment for the use of the ‘morning after pill' would have made no sense if implantation had been the starting-point of constitutional protection. No proponent of the amendment ever sought to interpret it as being thus limited, and the amendment was opposed precisely on the basis that it afforded protection from the time of conception.

The possibility of conception outside the womb was well known by 1983 – Louise Brown, the first ‘test tube baby', was by then five years old. During the passage of the legislation containing the amendment proposals, two proposed changes, which would have restricted the scope of the amendment to protection of life within the womb were defeated. McGovern's judgment is striking for its failure to discern in the Constitution any coherent value system which might guide his assessment of whether human beings are entitled to constitutional protection at the earliest stage of their lives. He observed: ‘‘If the law is to enforce morality, then whose morality is it to enforce?” This willingness to interpose a wedge between the law and morality is based on a seriously inadequate understanding of the nature of law, especially constitutional law. Law and morality are not strangers, but are intimately intertwined. Every law, even the most mundane, has a moral component. The Constitution is the basic legal edifice on which our human rights are recognised and protected. A judge, when interpreting the Constitution, should hesitate long before coming to the stark conclusion that some human beings fall outside the protection of the Constitution. There used to be a tradition in British law of strong legal positivisim, in which judges considered that their function was solely to assess whether a law had been promulgated in accordance with the technical requirements, not to decide whether it was just. This approach is dramatically opposed to constitutionalism, in which legal norms are interpreted in the light of the values which underline constitutions protecting human rights.

Sadly, McGovern's judgment is clearly influenced by positivism. It makes no attempt to assess the relevance of human dignity to the question before the court. Dignity is a crucial value at the heart of the Irish Constitution and other major international human rights instruments, including the Convention on the Rights of the Child and the Universal Declaration of Human Rights. Human life needs protection at all stages. That protection can, of course, be effectively provided by legislation, as well as under the Constitution. It is crucial that any legislation that may emerge should fully protect all human beings from destruction if the law is to advance the constitutional values of human dignity and equality.

William Binchy is Regius Professor of Laws at Trinity College Dublin and legal adviser to the Pro-Life Campaign November 19th 2006